"Courting Justice helps us understand the huge challenge South Africa’s judges faced after the collapse of the apartheid regime. It is evident that they were aware of the enormous responsibility they had to advance the belief that the new constitution was not only ink on paper, but a reality that could improve their lives.

The opening scene of Courting Justice features the Constitutional Court building, the very architecture of which conveys the court’s:transparency and accessibility. It is open to all including the school children we see, who are curious about the work done there.

One among the many challenges for this Court was and continues to be establishing and maintaining its own legitimacy. Courts, as Alexander Bickel said, are the least dangerous branch of government. They lack the power of the purse and the sword. Their legitimacy is constructed through each of their decisions , the arguments they offer to justify them and the connections these decisions have with improving the lives of the country’s citizens . Its legitimacy is also rooted in the diversity and the reputation of its members, as well as in their life experiences and commitments to justice and democracy. With each decision , the future of the new democratic regime, the credibility of the constitution itself and the hope of people in a better future are at stake."

September 20, 2011Georgia Pardons Board Denies Clemency for Death Row InmateBy KIM SEVERSONATLANTA — Barring an unimaginable legal reversal, Troy Davis will be executed by lethal injection at a Georgia prison on Wednesday.

In the days that follow, Amnesty International and other groups that fight the death penalty will move on to other cases.

The family of Mark MacPhail, the Savannah police officer who was trying to break up a fight in a fast-food parking lot when Mr. Davis shot him in the face and the heart, will look for closure after 22 years of courtrooms, news coverage and three heart-ripping stays of execution.

Legal experts will debate whether a case built on a tiny amount of physical evidence and shifting witness testimony was enough to warrant execution, and whether death penalty politics in the United States have reached a tipping point.

But here, in this capital city of the Deep South, the case will continue to resonate as a barometer of racism in this country, many said.

Throughout Tuesday and into the evening, when a few hundred people gathered at the Capitol downtown, people spoke again and again of how Mr. Davis was wrongly accused, wrongly convicted and now, in their minds, about to be wrongly executed by a legal system stacked against minorities.

“What am I supposed to tell my son? That we still live in a Jim Crow society?” said Mary Ross, 37, who attended a somber news conference inside Ebenezer Baptist Church in the neighborhood where the Rev. Dr. Martin Luther King Jr. preached.

There, members of the N.A.A.C.P. and Amnesty International and the church pastor outlined what are clearly Hail Mary efforts to stop the execution.

They pleaded publicly to the Georgia State Board of Pardons and Parole, which earlier in the day denied Mr. Davis’s clemency after a daylong hearing Monday.

In a brief statement, the five-member board, which is appointed by the governor, said that its members “have not taken their responsibility lightly and certainly understand the emotions attached to a death penalty case.”

Mr. Davis’s supporters were reaching out to the prosecutor in the original case, asking that he persuade the original judge to rescind the death order. Benjamin Jealous, head of the National Association for the Advancement of Colored People, who planned to visit Mr. Davis on Wednesday, was trying to ask President Obama for a reprieve.

The Innocence Project, which has had a hand in the exoneration of 17 death-row inmates through the use of DNA testing, sent a letter to the Chatham County district attorney, Larry Chisolm, urging him to withdraw the execution warrant against Mr. Davis, although there is no DNA evidence at issue in the case.

Regardless of whether those hope-against-hope efforts work, the N.A.A.C.P. and others said they would call for the Department of Justice to investigate the case as a civil rights violation, asking that the original police investigation and the legal process that led to Mr. Davis’s conviction be examined.

“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.

But for the family of the slain officer, and countless others who believe that two decades worth of legal appeals and Supreme Court intervention is more than enough to ensure justice, it is not an issue of race but of law.

She added, “We have laws in this land so that there is not chaos. We are not killing Troy because we want to.”

Her daughter, Madison, 24, along with her brother, Mark, 22, will be at the execution Wednesday. The officer’s mother, Anneliese MacPhail, will not. But she welcomes it, saying: “I’m not for blood — I’m for justice. We have been through hell, my family.”

Mr. Davis’s family, who had gathered in an Atlanta hotel to await the decision, learned that he would be put to death from members of his legal team and Amnesty International. They immediately went to the state prison in Jackson, about an hour’s drive south of Atlanta, to be with him.

Mr. Davis, who has refused a last meal, was in good spirits and prayerful, said Wende Gozan Brown, a spokeswoman for Amnesty International, who visited Mr. Davis on Tuesday.

He told her that his death was for all the Troy Davises who came before and after him.

“I will not stop fighting until I’ve taken my last breath,” he said in a conversation relayed by Ms. Brown. “Georgia is prepared to snuff out the life of an innocent man.”

The case has been a slow and convoluted exercise in legal maneuvering and death penalty politics.

This is the fourth time Mr. Davis has faced the death penalty. The state parole board granted him a stay in 2007 as he was preparing for his final hours, saying the execution should not proceed unless its members “are convinced that there is no doubt as to the guilt of the accused.” The board has since added three new members.

In 2008, his execution was about 90 minutes away when the Supreme Court stepped in. Although the court kept Mr. Davis from execution, it later declined to hear the case.

In the week before his third execution date, the United States Court of Appeals for the 11th Circuit issued a stay to consider his lawyer’s arguments that new testimony that could prove his innocence had not been considered.

The appeals court denied the claim but allowed time for Mr. Davis to take his argument directly to the Supreme Court, which ordered a federal court to once again examine new testimony.

But in June, a federal district judge in Savannah said Mr. Davis’s legal team had failed to demonstrate his innocence, setting the stage for the new date.

This time around, the case catapulted into the national consciousness with record numbers of petitions — more than 630,000 — delivered to the board to stay the execution, and a list of people asking for clemency included former President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress, entertainment figures like Cee Lo Green and even some death penalty supporters, including William S. Sessions, a former F.B.I. director.

September 20, 2011A Grievous WrongTroy Davis is scheduled to be executed on Wednesday for the 1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime.

This case has attracted worldwide attention, but it is, in essence, no different from other capital cases. Across the country, the legal process for the death penalty has shown itself to be discriminatory, unjust and incapable of being fixed. Just last week, the Supreme Court granted a stay of execution for Duane Buck, an African-American, hours before he was to die in Texas because a psychologist testified during his sentencing that Mr. Buck’s race increased the chances of future dangerousness. Case after case adds to the many reasons why the death penalty must be abolished.

The grievous errors in the Davis case were numerous, and many arose out of eyewitness identification. The Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.

In the decades since the Davis trial, science-based research has shown how unreliable and easily manipulated witness identification can be. Studies of the hundreds of felony cases overturned because of DNA evidence have found that misidentifications accounted for between 75 percent and 85 percent of the wrongful convictions. The Davis case offers egregious examples of this kind of error.

Under proper practices, no one should know who the suspect is, including the officer administering a lineup. Each witness should view the lineup separately, and the witnesses should not confer about the crime. A new study has found that even presenting photos sequentially (one by one) to witnesses reduced misidentifications — from 18 percent to 12 percent of the time — compared with lineups where photos were presented all at once, as in this case.

Seven of nine witnesses against Mr. Davis recanted after trial. Six said the police threatened them if they did not identify Mr. Davis. The man who first told the police that Mr. Davis was the shooter later confessed to the crime. There are other reasons to doubt Mr. Davis’s guilt: There was no physical evidence linking him to the crime introduced at trial, and new ballistics evidence broke the link between him and a previous shooting that provided the motive for his conviction.

More than 630,000 letters pleading for a stay of execution were delivered to the Georgia board last week. Those asking for clemency included President Jimmy Carter, 51 members of Congress and death penalty supporters, such as William Sessions, a former F.B.I. director. The board’s failure to commute Mr. Davis’s death sentence to life without parole was a tragic miscarriage of justice.

lunes, 19 de septiembre de 2011

Great news! Last night, the Supreme Court granted a last-minute stay to Duane Buck, who was hours away from his scheduled execution in Texas. We now await a decision from the court as to whether it will review his case, and the claims that race played an improper role in his death sentence.

We think it's pretty clear that it did. The ACLU's Brian Stull blogged earlier this month about this case:

In Texas, imposing the death penalty in capital cases comes down to one question: is the defendant going to be a "future danger" if he or she is not executed? Mr. Buck was sentenced to die based on testimony by Dr. Walter Quijano, who told jurors that Mr. Buck was more likely to pose a future danger to society because he is black. Dr. Quijano's testimony came in 1997, more than 20 years after Texas promised the Supreme Court that "no correlation exists between the race/ethnic background of a defendant and the probability that he will be either convicted of capital murder or given the death penalty."Buck's attorney, Kate Black of the Texas Defender Service, said in a statement last night:"We are relieved that the U.S. Supreme Court recognized the obvious injustice of allowing a defendant's race to factor into sentencing decisions and granted a stay of execution to Duane Buck. No one should be put to death based on the color of his or her skin. We are confident that the Court will agree that our client is entitled to a fair sentencing hearing that is untainted by considerations of his race."Thank you to everyone who took action and sent a message to the Texas Board of Pardons and Paroles and Gov. Rick Perry. We hope the Supreme Court will grant Duane Buck a new sentencing hearing. As Linda Geffin, who helped prosecute Buck in his 1997 trial wrote to Texas Gov. Rick Perry and the Board of Pardons and Paroles last Friday: "No individual should be executed without being afforded a fair trial, untainted by considerations of race."

September 16, 2011Stay of ExecutionAfter granting a stay of execution to Duane Buck just hours before he was to be put to death in Texas on Thursday, the Supreme Court must now review the case or, at the very least, order a lower federal court to consider Mr. Buck’s plea for a new sentencing hearing. It cannot allow a terrible injustice to stand.

Mr. Buck, an African-American, was convicted of murder in 1997. At the sentencing phase of his trial, a psychologist who was an expert witness said “yes” when asked if “the race factor, black,” increased the chances that Mr. Buck would do something dangerous again.

In Texas, this is a pivotal question: if the state does not prove “future dangerousness” beyond a reasonable doubt, it cannot sentence a convict to death. The prosecution got the answer it wanted and urged the jury to rely on this testimony. The jury sentenced Mr. Buck to death.

In 2000, Senator John Cornyn, who was then the Texas attorney general, called for new sentencing hearings for six men given the death penalty — including Mr. Buck — because race was improperly used as a factor in their sentencing.

Mr. Buck is the only one who has not been granted a new sentencing hearing. The state district attorney in charge in Mr. Buck’s case refused to admit that the use of race was a constitutional error that required a new hearing. By the time the case got to federal court, there was a new Texas attorney general who refused to abide by Mr. Cornyn’s judgment.

The gross racism in Mr. Buck’s case is proof again that the death penalty is cruel and unusual because it is arbitrary and discriminatory, as well as barbaric, and must be abolished.

Carlos Nino was a publicly engaged intellectual of rare integrity and brilliance. In his dedication to human rights, the rule of law, and constitutional legitimacy he combined passion with wisdom and analytic clarity. His inexhaustible courage in fighting to restore decency to his nation provides a model for others working in the wake of dictatorship. We are fortunate to have in his writings a record of his remarkable thought and experience.
Thomas Nagel

Carlos Nino was an extraordinary combination of theoretical philosopher, practical statesman, and heroic patriot. His work engages and repays attention at all three levels.
Ronald Dworkin

Carlos Nino was a brave man and an admirable philosopher who did his country notable service on the basis of a robust belief in liberal political values and universal human rights. His philosophy argues clearly and strongly for a foundation of the values which were expressed in his life.
Bernard Williams

The untimely death of Carlos Nino has deprived Latin America of one of its leading activists for constitutionalism, and it has torn from the international community of constitutional scholars one of its best and brightest. Carlos Nino was notably not only for his political wisdom and courage, but also for the unusual sophistication and cosmopolitanism of his constitutional thinking.
Stanley N. Katz

Carlos Santiago Nino died in 1993 at age 49. He was an unusual combination of philosopher, lawyer, activist, and scholar whose passion for ideas was equalled only by his passion for life. That life was cut short, but Nino's ideas on human rights, ethics, justice, and democracy are still here to enrich discussions and stimulate debate.
Dorothy V. Jones

WASHINGTON — The Supreme Court on Monday threw out the largest employment discrimination case in the nation’s history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had discriminated against them in pay and promotion decisions.

The lawsuit sought back pay that could have amounted to billions of dollars. But the Supreme Court, in a decision that was unanimous on this point, said the plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.

The court did not decide whether Wal-Mart had in fact discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.

In a broader question in the Wal-Mart case, the court divided 5-to-4 along ideological lines on whether the suit satisfied a requirement of the class action rules that “there are questions of law or fact common to the class.”

Justice Antonin Scalia, writing for the majority, said the plaintiffs could not show that they would receive “a common answer to the crucial question why was I disfavored.” He noted that Wal-Mart operated some 3,400 stores, had an express policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The plaintiffs sought to overcome the gap with testimony from William T. Bielby, a sociologist specializing in “social framework analysis.”

Professor Bielby told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.

“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”

“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”

Both Tunisia and Egypt's populist revolutions are still in their infancy and it is too early to say whether they will succeed in revitalizing civic and political life and lead to democratic regimes in either country. However, their ripple effects on the political landscape of the Middle East are already being felt. While there are limits to transferring any model of political change across the different Arab countries, it is fair to say that the changes in Tunisia and Egypt have already dealt a heavy blow to old myths about democracy and political transformation in the region. A new political narrative is in the making. There are four themes in this emerging narrative.

Democracy is a universal human right , not a Western idea.

While Egyptians were staging disciplined and peaceful demonstrations demanding that Hosni Mubarak step down, Egypt's former vice president, Omar Suleiman, appeared on TV to announce that "Egypt was not ready for democracy." While totally out of touch with what was unfolding on everyone's TV screen and demeaning to all Egyptians courageously standing up for their rights, this statement reflected the beliefs of other Arab autocrats and monarchs. On January 31, Syrian President Bashar Al-Assad, whose family has ruled Syria since 1971, was asked by the Wall Street Journal about the pace of political reform in his country. His reply: "... we have to wait for the next generation to bring this reform." In Syrian political code, this means "not on my watch." What these authoritarian rulers fail to appreciate are the stirrings of every human soul, be it Arab or Western. President Obama beautifully articulated this reality when he quoted Martin Luther King: "There is something in the soul that cries out for freedom."

Clearly, Egyptian democracy faces a bumpy ride. Whether the Egyptian military will live up to its promises and cede political power to civilian rule is still to be determined. However, we are already witnessing Egyptians and other Arabs debate what type of democracy Egypt should have. Until now, Arabs have been presented with a false choice between democracy as defined by the West (sometimes introduced by force as was the case in Iraq), and the lip-service democracies of most Arab governments that are, in fact, repressive and corrupt. Tunisia and Egypt have shown us that there is a third way -- an Arab way. To them, democracy in its essence is the right of the people to live their lives, and decide their fate without heavy-handed control by a police state. Democracy should be defined by the freedoms it guarantees to its citizens, including the freedom of expression, freedom of thought, freedom to form political parties, and the freedom to establish a strong society that is free of fear.

Non-violence can work.

Countries such as Iran and Syria, militant movements such as Hezbollah and Hamas and extremist groups such as Al Qaeda have long espoused violence as the only means to achieve change and right historical wrongs. If non-violent protests were to lead to a democratic transition in Egypt and Tunisia, this would seriously undermine this narrative. A democratic regime that emerges from a non-violent populist movement would have more authenticity and credibility than Iran's theocrats or Syria's autocrat or Hezbollah's militants in reframing the popular debate about the use of violence in bringing about internal change and redressing historical injustices. Democratically-elected regimes that include relatively moderate Islamist elements such as the Muslim Brotherhood would also gain more leverage in challenging the claims of extremists such as Al-Qaeda to act on behalf of Islam.

The Islamists are part of the solution, but Islam is not THE solution.

The Islamists did not instigate these protests in Tunisia or Egypt. In Tunisia, the agent provocateur was a young merchant who immolated himself in protest against the indignity and injustice meted out by local officials. In Egypt, it was a group of secular 20-30 year old internet-savvy Egyptians fed-up with the status quo in which Egyptians were treated as though they were servants to the pharaoh. They wanted to reclaim their role as citizens - that is, as owners of the land and of the public space. The slogan "Islam is the solution" was not the rallying cry in Tahrir Square. Rather, it was: "the people want to bring down the regime."

There is no doubt that the Islamists will have their place at the table in any future democratic Tunisia or Egypt. But they will be one stakeholder among many others including liberals, leftists, nationalists, and a host of other civic organizations. Upon his return to Tunisia after more than 20 years in exile in the UK, Rashed Al Ghanoushi, a Tunisian Islamist leader announced that there is no place for Shariah in Tunisia. Egypt's Muslim Brotherhood has already announced that it will neither field candidates in the next presidential elections nor seek to garner a majority of seats in the next parliament. It is quite telling that when Iranian leader Khamenei called on the Egyptian protesters to establish an Islamic regime, Mohamad Al-Katatni, the former leader of the Muslim Brotherhood's parliamentary bloc, replied: "We are not responsible for the statements and declarations made by external forces."

These developments in both Tunisia and Egypt clearly show that the Islamist movement in the Arab world is not the scarecrow that Arab authoritarian regimes have long claimed it to be. It is a movement that has undergone a long gestation period of internal deliberation and self-reflection, and by now has come to respect and espouse the democratic rules of the game.

It's about governance, stupid!

Both revolutionary movements have shown that the uprisings were spurred by corruption, unemployment, and poverty. Arab governments have long used the Arab-Palestinian conflict as an excuse to avoid reform and would often argue that political, economic and social reforms must be postponed until after the Palestinian issue has been solved. The protesters in the streets of Tunisia and in Tahrir Square were not mired in foreign policy debates. Rather, their demands centered around good governance defined by gaining a voice in the decision-making process, rule of law, respect for human rights, and transparent and accountable institutions of government whose purpose should be to achieve the welfare of all members of society. At the heart of good governance is human freedom. As economist Amartya Sen has long argued, "Expansion of freedom is viewed both as the primary end and as the principal means of development."

The wall of fear has been broken. The public space has been reclaimed. The citizens of Tunisia and Egypt now face the hard work of nation-building. It is in the West's interest to help make these two stories end well. Otherwise, the longest war will be with us for generations to come.

Randa Slim, a Lebanese-American political analyst, is a practitioner of dialogue and peace-building processes in the Middle East and Central Asia.

Y sobre Libia...

The Libyan situation is very different from what happened in Tunisia and Egypt partly due to the fact that in the two former cases, the army, a respected and cohesive institution, provided a buffer between the protesters and the pro-regime security services and hired goons and set the contours of the confrontation between the two parties. In both Tunisia and Egypt, the catalyst that compelled both presidents to step down, was the decision by the army chiefs not to fight their people in support of the president. In Libya, the army has been an instrument used by Muammar Qaddafi to consolidate his power. Fearing the development of any military network to unseat him from power, Qaddafi has over the years deliberately kept the armed forces weak and divided. The Libyan army lacks the discipline and professionalism we have seen displayed by their counterparts in Tunisia and Egypt. It is divided along Libya's tribal lines. It does not enjoy widespread popular support. This does not bode well for Libya's long-term stability. If the army were to split along tribal lines with some units that belong to Qaddafi's tribe remaining loyal to him, we are facing the real prospect of Libya descending into a protracted civil war.